Copyright As Censorship: Lawyers Tell Show Inspired By 'The Princess Bride' To Prepare To Die

from the copyright-is-many-things-none-of-them-logical dept

The Princess Bride remains quite the iconic book and movie for tons of people who grew up in the 1970s and 1980s (and, hopefully, other ages as well... but I can only speak from experience). A huge number of lines have lived on from that movie and become mainstays in popular culture. And like all sorts of great culture, it has inspired plenty of additional creativity around the original as well. A guy named Joe Brack created a one-man show called My Princess Bride, in which he intersperses events and stories from his own life with elements of the book and movie:

While Brack does snippets of re-enactments, he intersperses such scenes with commentary. For example, during a solo parody of the iconic swordfight between Inigo Montoya and the man in black, Brack explains some of the history behind the obscure names of fencers that are thrown around in the dialogue.

But there is also plenty of personal material in the show: At one point Brack talks about the death of his grandmother in 2012.

And, guess what? Just as the one man show was about to come back, someone stepped in with a cease and desist letter, saying that the show infringed. While Brack won't say who sent the cease and desist, there's a pretty short list of whom it might be.

Brack's partner in putting on the show, Matty Griffiths, says they had explored the copyright issues before putting on the show and were reasonably confident that it was fair use -- and it would appear that they have a very strong fair use argument here. But... because of the stupid way our fair use laws work, the only way to definitively know if it's fair use is to spend megabucks on a lawsuit. So, instead, this bit of creativity that people seemed to enjoy... has been shut down. While the two guys seem willing to test it, the theater where they were going to put on the show has bailed out, citing the potential liability.

Yet another bit of creativity completely stomped out thanks to copyright.

Not only that, but it's turning fans of the original into... not fans:

“I’m gutted,” Brack says. “The past two days have been so hard. And whenever I’ve been bummed out and sad, I watch ‘The Princess Bride,’ and I can’t even do that now.”

He owns three copies of the book, and he’s reversed them in his bookcase to hide the titles.

“It feels like I’ve lost a friend,” he says.

Isn't copyright supposed to inspire creativity, rather than stomp it out?

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Very little effort? Do you have any idea how much work they spend on fake reports, manipulating legislation and "re-educating" people, paying people to troll techdirt, making commercials about how piracy is killing our dishwashers and such? Not to mention all the work lawyers do to sue people and send out their extortion letters and such.. There is a ton of effort involved in maintaining this sham, don't kid yourself.

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It's the other way around. In order to see this show, you pretty much have to see/read the original. Otherwise you don't get references. This show is not a remake of the original book or movie. It's a show about Brack's life and how he was affected by/coincided with parts of the story.

While Brack won't say who sent the cease and desist, there's a pretty short list of whom it might be.

Even shorter, since the article states that he reversed his three copies of the book--and not the movie--I would hazard to guess that it was the publisher or the author. I'm leaning towards the author.

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I think you're reading too far into the article. He had to reverse these titles on his bookshelf. Not his dvd shelf. I doubt he has a dvd shelf. Who knows. The copies of the movie he has are probably somewhere else not in the place he always sits or is in his house. Those three titles were probably glaring at him from the shelf. Taunting him. The mention of this has nothing to do with hinting who the c&d was from and everything to do with the complete devastation the man felt.

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John Fenderson (profile), Dec 10th, 2013 @ 9:34am

Technically, all copyright infringement is censorship (the point of the enforcement is to get someone to stop speaking).NOT TRUE. "Infringement" means using the exact expression (and usually gaining money from it), and borderline is to use the material (here blatantly COPIED) but in NO case is it "censorship" to stop people from using one's own expression and make them say ideas their own way.

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The feeling of smug superiority I get from being a published author, who must receive payment before people can enjoy or use my great creative work -- *that's* what copyright infringement deprives me of!

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Ummm... you have a very curious definition of "censorship". Censorship is when you are prevented from speaking in the way you prefer -- even if that way is to use someone else's speech. How is copyright enforcement not censorship?

I would argue that it can be completely legitimate censorship, but it's still censorship. Not all censorship is bad.

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In almost all common uses "censorship" refers to speech that is quashed for going against what those in power want to represent on either a factual or editorial basis. While technically this is censorship in that it is preventing speech, it does not fall under the common usage and thus weakens it. This is a dangerous, dangerous position to take, particularly when there ARE several cases where copyright law is the hammer used to censor actual criticism (such as taking down transcripts of political speeches, or Donna Barstow claiming copyright on her signature to take down articles critical of her abysmal cartooning). This case stands in stark contrast to that because it's a 'standard' copyright claim and has nothing to do with quashing criticism.

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In cases like this one, people use the law (in this case, copyright) to silence people for daring to build upon prior culture to create new culture.

That still counts as censorship, no matter who actually takes responsibility for it. It’s not technically against the law thanks to copyright, but it does rub up against actual Free Speech and First Amendment issues — especially given how Fair Use exists only as a legal defense instead of a right.

Calling it censorship does little to dilute the ‘common’ usage of the term. Copyright-driven censorship is still censorship (and government-sanctioned, to boot).

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I cannot fathom how you don't see that this does indeed dilute the term. Refer to the definition of censorship that I posted above - that is the definition that people think of when they hear the term, full-stop. This does not fall under that umbrella. There are myriad copyright cases that DO fall under that definition, and they lose credence when you extend it haphazardly to literally every copyright infringement case in existence.

Censorship claims from copyright violation assertions are one of the best weapons we have to argue for copyright reform - conflating them with bog standard copyright cases is dulling that weapon considerably.

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You have got the definition and common use of censorship wrong is all. It doesn't have to be an attempt at manipulation like you think.. Putting blank boxes over porn is also censorship. I agree though, censorship for political manipulation is a different problem, but the word censorship itself doesn't imply that at all.

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Censorship claims from copyright violation assertions are one of the best weapons we have to argue for copyright reform - conflating them with bog standard copyright cases is dulling that weapon considerably.

Except this guy appears to have a solid case for Fair Use of the ‘Princess Bride’ clips, and he can’t actually assert that defense without spending a ton of money to fight the case in court.

Even if you believe that copyright enforcement doesn’t equal censorship in and of itself, this guy has a solid-enough case to fight the charge in court, but can’t because of the excessive costs of staging a legal battle over Fair Use.

He had to shut down this potentially-legal mode of expression because copyright law essentially forced him to shut it down. It’s clear-cut censorship via copyright law (which makes this government-sanctioned censorship).

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In almost all common uses "censorship" refers to speech that is quashed for going against what those in power want to represent on either a factual or editorial basis.

This is absolutely not true. For example, in libel cases, it is almost never the government being libeled. But granting a TRO or injunction in libel cases is often rejected because it would be censorship under the First Amendment.

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Awww, look how cute this guy is, trying to conflate real theft with copyright infringement. Bless his little heart! Hopefully one day he'll grow up, learn some things and make a proper counter-argument...

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Well it is using a government law to stiffle someone's expression.. But copyright is used almost exclusively for censorship if you want to get technical about it, so I kindof agree it's not really any more or less "as censorship" than usual here.

"like all sorts of great culture" that Mike extols, it's derivative CRAP.

You think this "great culture", college boy? What a hoot you are.

Anyhoo, those who START with large clearly attributable amounts of the works of others are at best second-handers leveraging the prior. Who the hell cares? Nothing lost here. In fact, this is a GOOD use of copyright, prevents clowns from ruining whatever value the original had -- especially if mixing it in with the dross of dull lives: who the heck wants their ideal fantasies soiled by every execrable half-wit hack?Where Mike daily proves the value of an economics degree.

@ "S.T.Stone": Copyright exists to control the right to copy.This is some revelation? This action is because reasonably deemed a close copy, deriving its value and actual material from the prior work. That's COPYING, therefore it's proper to use here.

So what? Your comment’s value comes from copying part of my prior comment and adding your own commentary to it. That doesn’t make my comment any less valuable (in the grand scheme of ‘valuable Techdirt comments’, mind you).

The original work still exists. People still gleam value from it. This guy's show did nothing to destroy that value, and it may have even added value to the original (e.g. the explanation of the fencers’ names used during the fencing scene in the film). How could anyone think this one-man show has somehow destroyed both the original work and its value as a part of pop culture?

@ "S.T.Stone": How could anyone think this one-man show has somehow destroyed both the original work and its value as a part of pop culture?"Who said it has, Mr Strawman? But the right to control copies of the work and derivatives that use much of it, the major if not only value in those derivatives being the original, then that's where the recognized right to control copies comes in.

Now, since you tacitly agree it's COPIED, I see no further value to replying. You'll just have to either copy my words and then gainsay them, or -- horror of horrors -- attempt to say something original on topic.The most influential, the most commented-at, the most mocked! And the only commenter honored in SONG!http://en.wikipedia.org/wiki/Out_of_the_Blue

" In fact, this is a GOOD use of copyright, prevents clowns from ruining whatever value the original had"

Also...my god the sheer arrogance. You honestly have lost all sense of reality, of what time is, to think that all those uses of the name Out_of_the_blue, WHICH PREDATE YOUR APPEARANCE ON TECHDIRT, are somehow named in honour of you.

My online handle is named after a character I enjoyed, but I don't go around saying that my handle came first, and the character was named in honour of me.

Fake "out_of_the_blue" unwittingly proves my point exactly: only purpose is to soil the value I've established in that screen name. -- And by the way, kids, that my comments here rile you is part of the value of the name! -- This person stealing my screen name actually wants to stifle dissent, just as is claimed some copyright holders do...

@ AC: There is certainly no value in something that has no value at all. Any value in the said screen name was most certainly devaluved by your own use in using it!Manifestly, dolt, it riles you. If that's all I can get out of you -- A COMPLETE LACK OF SUBSTANCE ON-TOPIC -- then it's FINE with me! One of my goals is to elicit your sort of CRAP stupidity because that's the TRUE measure of the site. ... [To any reasonable who might drop in out of the blue as I did: Geez, the fanboy-trolls are so stoopid you can't get the obvious across to them that by commenting at me, they're helping me and proving my points!]

@ AC:The fact that you feel a need to explain yourself means we got to you.How does it feel? Blood pounding in your head? Knowing that we bested you? That you lost? You're looking a lot more fragile now.Umm, okay...

[Note to the hypothetical reasonable visitor: THIS IS TECHDIRT AT ITS BEST.]Techdirt. A "safe haven" for pirates. Weenies welcome. Vulgarity cheered.

"Manifestly, dolt, it riles you. If that's all I can get out of you -- A COMPLETE LACK OF SUBSTANCE ON-TOPIC -- then it's FINE with me!"

It doesn't rile me at all to see you show that you cannot comprehend at all judging by the fact that you are easily disproved by people on here considering your LACK OF SUBSTANCE ON TOPIC every time you comment and that is FINE with me!

"One of my goals is to elicit your sort of CRAP stupidity because that's the TRUE measure of the site. ... [To any reasonable who might drop in out of the blue as I did: Geez, the fanboy-trolls are so stoopid you can't get the obvious across to them that by commenting at me, they're helping me and proving my points!]

The only goal that you are successfuly showing is your own elicit sort of CRAP and STUPIDITY, off topic posts and lack of comprehension that you post every time which shows just how stupid that you are being which is helping everyone to prove their points on here very easily indeed!!!

@ "Gwiz" Parody... another word OOTB doesn't understand."Substance" and "on-topic" being two concepts that you cannot grasp, instead just blather. YOU are a prime example of Techdirt fanboy-troll.Copyright holders wanting to be paid is NOT tyranny, no matter how much you want pornz for free.On the other hand, Google tracking you continually to affect at least your buying and no way to stop its assaults has intrinsic tyranny: tracking, control, helpless to resist.

"Fake "out_of_the_blue" unwittingly proves my point exactly: only purpose is to soil the value I've established in that screen name"

No -- you've accomplished that all on your own.

What "Fake "out_of_the_blue"" actually proves is merely that you've become (again, by your own efforts) such an object of derision, that people feel little qualms about openly disparaging you (because, after all, it's not like it harms your reputation or anything)...

Re: Wahoo for copyright: again with the "out-troll" tactic.

Geez, kids, you can't win that way! I don't MIND you using the name falsely to trash the site, as that's the only way you CAN contribute, and it's TRUTH to show the actual level of discourse here. Carry on, you second-hand fake: spew crap.

Isn't copyright supposed to inspire creativity, rather than stomp it out?

And copyright does so how? By giving authors certain exclusive rights, i.e., rights to exclude others from misappropriating the protected elements of their works. It's not hard. Why pretend like this isn't part of the bargain?

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And copyright does so how? By giving authors certain exclusive rights, i.e., rights to exclude others from misappropriating the protected elements of their works. It's not hard. Why pretend like this isn't part of the bargain?

So in your words, copyright is there to protect those who come first from others, who are not fortunate to be born first from coming along and building on that work. If that is the case, hope, no pray, that someone who comes before you doesn't claim you stole their work. Copyright gives authors exclusive rights (for a limited period of time) to copy their work. Derivative rights are an abomination to science, reality, and human nature, and hopefully will someday be destroyed.

Nothing is born in a vacuum. Not ether, not copyrighted works, nothing. All works are born from works that came before. Everything is derivative. To claim otherwise is to tilt at windmills.

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"And copyright does so how? By giving authors certain exclusive rights, i.e., rights to exclude others from misappropriating the protected elements of their works."

Just to be crystal clear, you have just stated that giving authors the right to exclude others from misappropriating the protected elements of their works inspires creativity. This is about the most braindead thing I've ever read, and proves beyond doubt that you don't have a creative bone in your body and have never created anything of worth.

"It's not hard. Why pretend like this isn't part of the bargain?"

I suggest you avoid mentioning the "the bargain", since the current state of copyright law has completely broken the bargain copyright holders are supposed to have with the public. You're on the wrong side of that argument.

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This is about the most braindead thing I've ever read, and proves beyond doubt that you don't have a creative bone in your body and have never created anything of worth.

While there are exceptions, I have noted that as a general trend, the more someone supports copyright the less creative they are. The exceptions tend to be the creators that have made a fortune, and have no need to create any new works.

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And copyright does so how? By giving authors certain exclusive rights, i.e., rights to exclude others from misappropriating the protected elements of their works.

Exclusive rights are the mechanism, not the purpose. If that mechanism acts counter to copyright's purpose, it is a failure.

Also, "exclusive rights" don't necessarily mean "the right to exclude others," though it often does. It can also mean "the exclusive right to income," even if that income does not come with the right to exclude others from using the work. That's how statutory royalties work, for example.

Why pretend like this isn't part of the bargain?

Because it isn't. Copyright law was not supposed to stifle derivative works that also have a significant element of original expression, or that transform the original in significant ways.

This is why fair use exists, and has existed as long as copyright has been around. Even when a copyright holder objects to that usage, the law has acknowledged that the usage should be allowed. Otherwise, copyright is acting against its sole purpose of providing the public with new works of art.

From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, "[t]o promote the Progress of Science and useful Arts...." For as Justice Story explained, "[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." [...]

The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster."

- Campbell v. Acuff-Rose

In this case, the use of "The Princess Bride" was most likely a fair use - and thus, a use that copyright is designed to promote. The fact that copyright was used to prevent that work from appearing, is not only censorship, it is acting against the very purpose of copyright itself.

In almost all common uses "censorship" refers to speech that is quashed for going against what those in power want to represent on either a factual or editorial basis. While technically this is censorship in that it is preventing speech, it does not fall under the common usage and thus weakens it. This is a dangerous, dangerous position to take, particularly when there ARE several cases where copyright law is the hammer used to censor actual criticism (such as taking down transcripts of political speeches, or Donna Barstow claiming copyright on her signature to take down articles critical of her abysmal cartooning). This case stands in stark contrast to that because it's a 'standard' copyright claim and has nothing to do with quashing criticism.

I agree. Censorship is when an idea is suppressed because the censor doesn't like that idea. Enforcing property rights isn't censorship just because those property rights happen to involve speech. Part of the bargain of copyright is that the copyright holder has certain exclusive rights over his protected speech. That control isn't "censorship" when exercised.

You killed my pasttime. I'm prepared to die.

This is so sad. Such a valuable piece of my childhood that I enjoy. I watch this movie several times a year along with the extras (few but excellent!) on my dvd. I have shown this movie to friends who haven't seen it before and watched it together with family during our mid-year mini-reunions. And now... how can I continue to support owners who would stifle freedom.

Just to be crystal clear, you have just stated that giving authors the right to exclude others from misappropriating the protected elements of their works inspires creativity. This is about the most braindead thing I've ever read, and proves beyond doubt that you don't have a creative bone in your body and have never created anything of worth.

I don't see the need for personal attacks. What I said is the classic presentation of the copyright bargain. The exclusive rights are the incentive that get people to create original works in the first place.

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What I said is the classic presentation of the copyright bargain. The exclusive rights are the incentive that get people to create original works in the first place.

A classic presentation that a good group of us find corrupt and perverted. A copyright bargain based on a flawed view of creation, instead of one based on evolution. A copyright bargain that has no basis in reality and serves only to make those who managed to get there first the rulers over those who came later.

The belief that, as you say, without incentive, no original works will be created. Copyright is a recent invention (a flawed one,) and for many years before copyright existed, people created works. And copyright isn't giving much of an incentive right now for Hollywood to make original works.

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Haven't figured out how you use the reply button yet?

"What I said is the classic presentation of the copyright bargain."

Absolutely wrong. The actual bargain is that copyright grants limited control of a work for a limited period of time and then it forever becomes part of the public domain. All three aspects of that bargain have been mangled beyond recognition by copyright maximalists and supporters, so the bargain is well and truly broken and should be ignored on principle.

"The exclusive rights are the incentive that get people to create original works in the first place."

If you were a creator you'd know this is completely wrong. That's not a personal attack, it's just a statement of fact.

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What I said is the classic presentation of the copyright bargain.

Not really. Aside from what I posted above, the "copyright bargain" is not supposed to inspire creativity per se, but to encourage a commercial market for creativity. That commercial market is considered necessary for the publication or works that would (in unproven theory) otherwise never make it to the public. In other words, it is not creativity itself, but the dissemination of that creativity to the public, that is the goal of the "copyright bargain."

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Awww, look how cute this guy is, trying to conflate real theft with copyright infringement. Bless his little heart! Hopefully one day he'll grow up, learn some things and make a proper counter-argument...

Please define "real theft." And while you're at it, explain how it is that theft is applied to situations where nothing tangible is stolen. For example, if you sneak into a movie theater and watch the movie without paying, that is defined to be theft of services in many states. The point that I think you're missing is that theft doesn't only refer to taking something away from somebody. It can also refer to receiving something of value without paying for it. It's the latter meaning which is employed when infringement is equated with theft.

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For example, if you sneak into a movie theater and watch the movie without paying, that is defined to be theft of services in many states.

"Theft of services" is not considered theft in the same line as petty theft/grand theft. It is more akin to defrauding an innkeeper (which most states equate it to.) Much like copyright infringement, it is considered different under the law than theft. However, unlike copyright infringement, defrauding an innkeeper does result in real loss, since the innkeeper has a limited amount of supply and the theft prevents them from selling that supply to another person.

Copyright infringement potentially results in loss of profit, but when there is an infinite supply of product, it is hard to say that the result prevents someone from selling the supply to another person.

Also, please learn to internet. When you respond to someone, press "reply to this." It helps keep things in order and makes following the thread easier.

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Simple. The movie theatre has a finite, limited number of seats to sell the right for people to sit on for two hours. If I sneak in and watch the full movie, the theatre is unable to sell that seat.Not so if I download a movie. The argument can be made that I have received something of value without paying for it (which is an extremely bad grouping of words for you to use; a properly functioning demo of a game has value to both the studio and the end player, but no-one would think to say that because I receive it for free means I somehow have defrauded or cost a loss to the developers), but not in the same vein as theft.

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Incorrect.

In your example, you have taken something that's a finite, limited resource (the use of the cinema seat) and which requires non-zero cost to the provider to give to you (the share of power, staffing, rental of the film print, etc. required to show the film). Ditto for most things covered under "theft of services" - the point being that even if you haven't personally received something tangible, the provider has still lost the resources required to provide that to a non-paying customer.

None of this applies when copying a digital file. It's an infinite product that costs nothing to the originator to supply to you - unless you start basing your argument on faulty logic such as "every download is a lost sale". If you copy a movie file from somebody else's computer, the studio haven't lost a single penny that can be quantified. The argument's much more complex - and usually based on lies and misdirection.

Infringement is not, and will never be, theft. Those two words describe completely different things. Deal with it.

What if someone exercises their rights to silence someone who uses that ‘protected speech’ as part of a larger commentary on culture and life?

Does that truly not count as censorship?

In my opinion, no, it's not. Imagine if I own a plot of land, and there's a certain spot where people congregate to listen to other people make speeches. I can run the people off of my land if I don't like their speeches, and I can permit people whose speeches I do like to remain on my land. I'm not censoring those people I run off even though I'm doing it because I don't like what they're saying. I'm simply enforcing my property rights. The problem only arises because the speakers decided to use my property without permission in making their speeches in the first place. It's not censorship since they are free to spread their ideas without using my property in the process. The same holds true for intellectual property, like copyrights. The law privileges some uses of other people's copyrighted works without permission just as it permits some uses of other people's land without permission. But the person who uses other people's works or land runs the risk that the property owner won't agree that it's privileged, in which case he may assert his rights. Trying to frame it as "culture" doesn't mean much legally.

So in your words, copyright is there to protect those who come first from others, who are not fortunate to be born first from coming along and building on that work. If that is the case, hope, no pray, that someone who comes before you doesn't claim you stole their work. Copyright gives authors exclusive rights (for a limited period of time) to copy their work. Derivative rights are an abomination to science, reality, and human nature, and hopefully will someday be destroyed.

Nothing is born in a vacuum. Not ether, not copyrighted works, nothing. All works are born from works that came before. Everything is derivative. To claim otherwise is to tilt at windmills.

Yes, everything is derivative to some degree. But that broad meaning of derivative is not the meaning of the legal term of art derivative. Every single day, original works are created. Your post to me is an original work of art that is protected by copyright, even though you could say it's derivative in the broad sense of the word. You're conflating your nonlegal meaning of derivative with its legal meaning. Despite being derivative in that broad sense, works are still considered to be original and thus protected by copyright.

A classic presentation that a good group of us find corrupt and perverted. A copyright bargain based on a flawed view of creation, instead of one based on evolution. A copyright bargain that has no basis in reality and serves only to make those who managed to get there first the rulers over those who came later.

It's a view that recognizes that, while certainly creativity builds upon what's come before, it nevertheless realizes that it's easy to create something original in the technical sense.

The belief that, as you say, without incentive, no original works will be created.

I never said that. I'm incentivized to write this very response to you without copyright.

Copyright is a recent invention (a flawed one,) and for many years before copyright existed, people created works. And copyright isn't giving much of an incentive right now for Hollywood to make original works.

Hollywood makes works that are original in the legal sense. I think you misunderstand what original means in the copyright law context.

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Hollywood makes works that are original in the legal sense.

So the fifth iteration of Transformers and the seventh iteration of Fast and Furious are original. Thanks for the clarification. Also, I'll let the publishers of John Carter know that Disney's implementation is entirely original.

I think you misunderstand what original means in the copyright law context.

The fact that there can be any misunderstanding of the law vs. reality shows how tenuous the law is.

Absolutely wrong. The actual bargain is that copyright grants limited control of a work for a limited period of time and then it forever becomes part of the public domain. All three aspects of that bargain have been mangled beyond recognition by copyright maximalists and supporters, so the bargain is well and truly broken and should be ignored on principle.

Yes, the rights are limited. But that doesn't disprove what I said about the copyright bargain being the rights exchanged for the works. I don't understand your point.

If you were a creator you'd know this is completely wrong. That's not a personal attack, it's just a statement of fact.

And yet most of the music, movies, books, etc. that people download are the ones where copyright was certainly part of what incentivized the creation and dissemination of those works in the first place. It seems to me pirates complain about copyright not working with one hand, while they're downloading without paying with the other. I don't get it.

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"And yet most of the music, movies, books, etc. that people download are the ones where copyright was certainly part of what incentivized the creation and dissemination of those works in the first place."

You can't really say that copyright incentivized their creation because everything created is automatically copyrighted as soon as it is put onto a fixed medium.

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Seriously, is your reply button broken? Or is participating in a threaded conversation too scary?

"Yes, the rights are limited. But that doesn't disprove what I said about the copyright bargain being the rights exchanged for the works. I don't understand your point."

My point was that you raised "the bargain" as if copyright supporters have any moral ground to complain about broken bargains.

"And yet most of the music, movies, books, etc. that people download are the ones where copyright was certainly part of what incentivized the creation and dissemination of those works in the first place."

Please don't confuse the creative processes of authors, filmakers, musicians, etc with the desire of the content industry corporations to make as much money as possible. Copyright provides incentives for the latter, but not the former.

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"Theft of services" is not considered theft in the same line as petty theft/grand theft. It is more akin to defrauding an innkeeper (which most states equate it to.) Much like copyright infringement, it is considered different under the law than theft. However, unlike copyright infringement, defrauding an innkeeper does result in real loss, since the innkeeper has a limited amount of supply and the theft prevents them from selling that supply to another person.

But I think you miss the key point of the example of theft of services. Sneaking in to the theater without paying is theft, even if it didn't cost the theater anything as they were playing the movie anyway, because the person sneaking in ACQUIRES something without paying for it. Obviously, not everything we acquire without paying is theft. But certain intangibles, such as theater service, or copyright rights, are capable of being stolen nonetheless.

Copyright infringement potentially results in loss of profit, but when there is an infinite supply of product, it is hard to say that the result prevents someone from selling the supply to another person.

A loss of profits can certainly be a part of what makes it theft. But it's theft even if it's not a lost sale for the reasons just mentioned. The infringer acquires something of value without paying the part who has the right to exclude from acquiring that thing without paying for it.

Also, please learn to internet. When you respond to someone, press "reply to this." It helps keep things in order and makes following the thread easier.

I apologize for the replies not showing up correctly. That is beyond my control. I am clicking "reply" in the normal fashion. If you view it in "Flattened" view, it's easier.

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Sneaking in to the theater without paying is theft, even if it didn't cost the theater anything as they were playing the movie anyway, because the person sneaking in ACQUIRES something without paying for it.

Which is why sneaking into the movie theater is usually not charged as theft of services/defrauding an innkeeper, but as commercial trespass. The movie theater tells the person to leave and the police give the person notice of trespass. If the person returns, they go to jail on misdemeanor trespass charges. A lot easier than going to court and dealing with $6-10 in damages.

A loss of profits can certainly be a part of what makes it theft. But it's theft even if it's not a lost sale for the reasons just mentioned. The infringer acquires something of value without paying the part who has the right to exclude from acquiring that thing without paying for it.

This has been debunked so many times here. It is not true based on the law or based on reality. A lost sale is not theft (at least until Congress passes a law that mandates profit.) There are many cases where an infringer acquires something of value while paying but not receiving what they paid for, or receiving the value they thought they were going to receive by paying.

I apologize for the replies not showing up correctly. That is beyond my control. I am clicking "reply" in the normal fashion. If you view it in "Flattened" view, it's easier.

Like every other argument you've made...it is easier (according to you) to do what is easier for you, instead of doing what is easier for everyone else. How entitled are you?

While there are exceptions, I have noted that as a general trend, the more someone supports copyright the less creative they are. The exceptions tend to be the creators that have made a fortune, and have no need to create any new works.

I'm certainly left-brained and analytical, but I do play several instruments.

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So the fifth iteration of Transformers and the seventh iteration of Fast and Furious are original. Thanks for the clarification.

Yes, those movies have original, and hence protectable, elements. You do realize that when a work is copyrighted, not everything about that work is necessarily protected, right? You have to separate the protectable from the nonprotectable elements. Those movies, without question, have original, protectable elements.

The fact that there can be any misunderstanding of the law vs. reality shows how tenuous the law is.

Originality has a certain meaning in copyright law, just as many other terms have certain meanings in their legal sense. I don't see how that shows the law is tenuous. I don't think it means what you think it means. The law would be tenuous if it didn't use terms of art.

Which is why sneaking into the movie theater is usually not charged as theft of services/defrauding an innkeeper, but as commercial trespass. The movie theater tells the person to leave and the police give the person notice of trespass. If the person returns, they go to jail on misdemeanor trespass charges. A lot easier than going to court and dealing with $6-10 in damages.

I'm not sure what you're basing that on. There are all kinds of theft statutes that consider the receiving of something of value without paying to be theft. Look at theft of cable service. That's theft because it's taking something of value without paying.

For example, in New Jersey: "A person is guilty of theft if he purposely obtains services which he knows are available only for compensation . . . to avoid payment for the service. "Services" include . . . cable television . . . ." N.J. Stat. Ann. 2C:20-8(a).

Or in New York: "A person is guilty of theft of services when . . . [w]ith intent to avoid payment by himself or another person of the lawful charge for any telecommunications service, including, without limitation, cable television service . . . which is provided for a charge or compensation . . . ." N.Y. Penal Law 165.15(4).

Taking cable service without paying is theft, even though the cable company is pumping that same signal through those same wires whether you obtain it or not. It's the taking something of value without paying that matters. And it matters because it costs the cable company real time and money to provide that service. Just like it costs copyright owners real time and money to create the copyrighted work. They are given a property right in exchange for this effort.

This has been debunked so many times here. It is not true based on the law or based on reality. A lost sale is not theft (at least until Congress passes a law that mandates profit.) There are many cases where an infringer acquires something of value while paying but not receiving what they paid for, or receiving the value they thought they were going to receive by paying.

How does that disprove my point that copyright infringement is like theft of services because in each case someone obtains something of value--value created by the property holder--without paying the expected amount?

Like every other argument you've made...it is easier (according to you) to do what is easier for you, instead of doing what is easier for everyone else. How entitled are you?

I am hitting "reply" in the proper fashion, as I said. I have no control over why TD doesn't display my replies appropriately. I merely suggested that it would be easier for you to use flattened view, since you can control that. I wasn't saying I'm entitled to anything. I'm not sure where you're coming from this stuff.

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I'm not sure what you're basing that on. There are all kinds of theft statutes that consider the receiving of something of value without paying to be theft. Look at theft of cable service. That's theft because it's taking something of value without paying.

I am basing it on my training and experience.

I fail to see how sneaking into a theater is even closely related to theft of cable service. Theft of cable service is also a separate law. And in my experience the theft of cable service has more to do with breaking equipment and removing service from others than it does stealing service.

How does that disprove my point that copyright infringement is like theft of services because in each case someone obtains something of value--value created by the property holder--without paying the expected amount?

I recently purchased (as I often do,) a movie on DVD that I was interested in watching. Usually I use Netflix for this, but the movie wasn't available on Netflix (probably because the company felt it could make more money by stiffing Netflix than it could by working with them, but no matter.) I then ripped it (actually, legally, as the DVD did not have any copy protection, thankfully,) and placed the DVD on to my shelves that have DVDs, and then proceeded to watch the movie on my Linux system using VLC (I don't do Windows, and there aren't any "legal" Linux DVD players out there.) I did not place the video online, and did not "make it available" for anyone to download.

So, what you are saying is that I didn't pay the expected amount to obtain the DVD I paid for because I used copyright infringement to obtain something of value, created by the property holder, for something they determined I should only be allowed to play on a sanctioned DVD player or on a Windows computer? What if I purchased the DVD and then found out it was copy protected and I couldn't play it on my Linux computer? What if, after buying it, I downloaded it from a torrent in order to play it? So all copyright infringement is like theft of service because customers who purchase a DVD or BluRay, expecting it to play, obtain something of value without paying the expected amount?

You can't really say that copyright incentivized their creation because everything created is automatically copyrighted as soon as it is put onto a fixed medium.

But those people put it into a fixed medium in the first place because they knew they'd get the copyright. Do you not see how, say, Warner Bros. knows they're going to get the copyright, and so, based on that knowledge, invests time and money into their next movie?

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Seriously dude, click on the Reply button. It tidies up the conversations here. Use it."But those people put it into a fixed medium in the first place because they knew they'd get the copyright."Anyone who creates anything knows (more than likely) that they'll receive a copyright as soon as they put pen to paper or what-have-you, but it is not the primary reason they do so. Seriously, why are you arguing this? Copyright law is barely 3-4 centuries old, and there were plenty of creative works done before that. I too am a creative person, but I don't want copyrights on my works. However, I receive them automatically as soon as I put them onto a medium.

As for WB and other studios, they view copyright as a tool, not the end goal. They don't say "Let's make this movie so we have a copyright on it. Great! We've made the movie, only we can distribute it, job well done people!" They create the movie with the intent to sell it and make a profit, and (wrongly in my opinion) view copyright as a tool that helps them do that.

Seriously, is your reply button broken? Or is participating in a threaded conversation too scary?

I'm using a VPN. The reply button doesn't function because of some issue with my VPN and the TD website. Sorry, but that's the way it is.

My point was that you raised "the bargain" as if copyright supporters have any moral ground to complain about broken bargains.

I was making only a descriptive argument about the traditional view of the bargain. I think the calculus of that bargain is different now, as things are automatically copyrighted at fixation instead of upon publication. And that's certainly a good point to raise, one which I think shows that the purely utilitarian model is incomplete. But that's saying nothing about any normative view about the morality of it all. I think the moral argument is pretty simple. People put time and effort into creating works of art and are given property rights to promote such efforts. They get those rights because they earned those rights. They have a moral desert claim to them. There's all kinds of countervailing interests, as you well know, but at bottom the moral part of the argument is simple. There's other less-Lockean views as well which similarly conclude that the author has a moral claim to his works.

Please don't confuse the creative processes of authors, filmakers, musicians, etc with the desire of the content industry corporations to make as much money as possible. Copyright provides incentives for the latter, but not the former.

I think it's all one big system. The rights are what the authors and musicians have to bargain with. Without the authorial rights, there'd be no promotion and distribution system. Those copyrights are integral.

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"People put time and effort into creating works of art and are given property rights to promote such efforts. They get those rights because they earned those rights. They have a moral desert claim to them."

In other words, sweat-of-the-brow. A concept in copyright law that was rejected in Feist v Rural Telephone Service.

"Without the authorial rights, there'd be no promotion and distribution system."Really? You assume that to be true? So without copyright, an author wouldn't be able to sell a stamp of approval on goods (this is something that copyright wouldn't address, this would be under advertising laws). So if there were no copyright, George R R Martin wouldn't be able to license a stamp of approval to certain companies to sell products based on Game of Thrones?Distribution? Excuse me while I have a laugh. Distribution (unless you're using a completely different definition) is the moving of items from one place to another. Copyright law merely says that an author has the right to distribute their works, but doesn't in and of itself create the distribution system (e.g. newspaper, books, CDs, the Internet)

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I think the moral argument is pretty simple. People put time and effort into creating works of art and are given property rights to promote such efforts. They get those rights because they earned those rights.

Then you must think copyright law is terribly immoral, since copyright is not granted "because they earned those rights." (This wouldn't surprise me in the least.)

You must also think that "work for hire" is completely immoral, since the people who put time and effort into creating works never hold any kind of property rights in those works at all.

And you must also think that most employment is completely immoral, since chefs, carpenters, plumbers, welders, and so on put in a lot of time and effort into creating works, but none of them are ever granted property rights in the works they create.

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I'm using a VPN. The reply button doesn't function because of some issue with my VPN and the TD website. Sorry, but that's the way it is.

I administer VPNs as part of my day job, and I have yet to see a VPN do deep packet inspection and screw around with http as badly as you appear to be seeing. If your VPN is causing this difficulty, I suggest you might want to find a different VPN provider, preferably one that isn't such a scam. VPNs should just tunnel traffic from one point to another. (Actually, I tend to see this type of thing more with "anonymizer proxy servers," as in the free ones that tend to be really insecure.)

You might want to hook up here with some of the other folks who use VPNs to access Techdirt, as they have far better success than you appear to be having. Might I suggest out_of_the_blue and Average_Joe... Maybe they can offer some help in setting up your VPN to work with Techdirt.

Seriously dude, click on the Reply button. It tidies up the conversations here. Use it.

I've said this several times already. I am using it. It doesn't work for me. I think it's my VPN messing things up. Sorry about it.

Anyone who creates anything knows (more than likely) that they'll receive a copyright as soon as they put pen to paper or what-have-you, but it is not the primary reason they do so. Seriously, why are you arguing this?

I was talking about the movie, music, and book markets that are copyright based. The ones, coincidentally, which produce the movies, music, and books that the majority of people want.

Copyright law is barely 3-4 centuries old, and there were plenty of creative works done before that.

Of course. And even today there's many great works not incentivized by copyright. I'm fully in agreement. I'm talking about the popular, mainstream stuff that is incentivized by copyright. The stuff I pay $175 per month to get from my cable company. Like HBO.

I too am a creative person, but I don't want copyrights on my works. However, I receive them automatically as soon as I put them onto a medium.

And you can choose to give it away to whomever you want on any conditions you want. Copyright gives you many options.

As for WB and other studios, they view copyright as a tool, not the end goal. They don't say "Let's make this movie so we have a copyright on it. Great! We've made the movie, only we can distribute it, job well done people!" They create the movie with the intent to sell it and make a profit, and (wrongly in my opinion) view copyright as a tool that helps them do that.

Yes, it's the tool that incentivizes them to invest in their next movie. They know that they will have the right to exclude others from copying it, and that is significant in their decision to make the movie in the first place.

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"I'm talking about the popular, mainstream stuff that is incentivized by copyright."

I fail to see where, why and how the fact that something is mainstream suddenly merits a work protection under the law.

"Yes, it's the tool that incentivizes them to invest in their next movie. They know that they will have the right to exclude others from copying it, and that is significant in their decision to make the movie in the first place."

The idea behind incentivization sounds great in theory: only you can distribute the movie and thus, you can more or less ensure you have an income, but look at what must be done in the modern world for that1) Lockdown of computer hardware, despite the fact the hardware is bought and paid for2) Online DRM that functions by presuming every nanosecond you are a freeloader and thus, every nanosecond you must be checked - equivalent to a store clerk demanding your receipt every time you read a word in a book3) Self censorship (like in this article) because it's far too costly to defend oneself in court.

Long story short, exclusive rights sound great, but society has to pay an extremely high price to enable them. Too high a price if you ask me, a price I refuse to pay.

In this case, the use of "The Princess Bride" was most likely a fair use - and thus, a use that copyright is designed to promote. The fact that copyright was used to prevent that work from appearing, is not only censorship, it is acting against the very purpose of copyright itself.

Yes, if it's fair use, then copyright doctrine says that it promotes the progress. But I don't see how it's "censorship" to send a cease and desist. The copyright owner, if we suppose good faith on his part, thinks it not fair use. And like most such things, there's colorable arguments for either side. But I think it's disingenuous to say that such a copyright owner is a "censor." We don't normally call people who enforce their property rights "censors." If I kick the uninvited prophet off my lawn, I'm not censoring him. He'll just have to spread his message without use of my property.

Then you must think copyright law is terribly immoral, since copyright is not granted "because they earned those rights." (This wouldn't surprise me in the least.)

I think it is granted because they earned those rights:

"The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered." Mazer v. Stein, 347 U.S. at 219.

You must also think that "work for hire" is completely immoral, since the people who put time and effort into creating works never hold any kind of property rights in those works at all.

The worker gets paid for his efforts. That's the bargain the worker made with the employer. This is why employees get paid. If I pay you $50 to mow my lawn, I get to keep the mowed lawn despite your having done the work because I paid you for your effort. You have no moral claim above and beyond the $50 I promised you. In a work for hire, we let the employer keep the "mowed lawn" because he paid for it.

And you must also think that most employment is completely immoral, since chefs, carpenters, plumbers, welders, and so on put in a lot of time and effort into creating works, but none of them are ever granted property rights in the works they create.

Not at all. Lots of things exist that we don't provide intellectual rights in. Those services are usually provided in exchange for money, and the effort is rewarded accordingly. I don't think it's amoral to not grant everyone an intellectual property right in everything they do. But I do think that copyright owners have a moral claim nonetheless.

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"But I do think that copyright owners have a moral claim nonetheless."

Here's something you don't factor into your equations. The fact that copyrights are (well supposed to) to end. Copyrights are for a limited time. You say copyright is moral. So then, what about once the work hits the public domain? Is the copyright immoral then? The duration of the copyright is basically arbitrary; it's not like it's a scientifically determined length. If it's immoral for me to infringe on a Sega Genesis game from the early 90's, why is it not immoral for me to download a work made before 1923? Take Alice in Wonderland and the Lord of the Rings. Both are immensely popular books. Alice was once under copyright. Now it isn't. Why and how did the morality of its copyright change simply because an arbitrary number of years have passed? What about LotR? Like Alice, its author is dead. Has been for decades. However, unlike Alice, it still remains under copyright, and thus according to you, immoral.

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The worker gets paid for his efforts.

No one is arguing against workers getting paid for their labor. What you're saying is moral is granting exclusive property rights on the results of that labor, above and beyond being paid for the labor itself.

If I pay you $50 to mow my lawn, I get to keep the mowed lawn despite your having done the work because I paid you for your effort.

But you're arguing that if I mow your lawn, I should have exclusive property rights to your lawn. Mowing your lawn would be my exclusive "property," so mowing it yourself, or hiring anyone else to mow it, should be "theft."

That is the moral argument you are making.

Lots of things exist that we don't provide intellectual rights in.

And, as it turns out, when we don't provide intellectual property rights in them, we get more of those things.

When we compare industries that both do and do not have IP protections in certain areas (the fashion industry, database rights, etc.), it turns out that the places that do not have IP protections have more innovation and more production.

This should surprise nobody, since it is well-known that monopolies stifle innovation and economic growth, and that is exactly what IP is meant to be.

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Mowing your lawn would be my exclusive "property," so mowing it yourself, or hiring anyone else to mow it, should be "theft."

...Or, perhaps you're one of those people who believes that copyright should be about controlling the work.

Say I mowed your lawn, and the next day, you decided to turn your lawn into a rock garden. You're destroying the results of my labor. All of that hard work, down the drain. And putting in a rock garden to boot! No lawn-mower in his right mind would want to be associated with such a grassless abomination.

Why, the only thing that is moral is to get the government to grant me an injunction against you putting in a rock garden. After all, I put in a lot of time and effort into the work of art that is your lawn, so I have a property right in it, and you shouldn't have a right to destroy my property.

I've seen this sort of argument before. Obviously, I don't think it holds water. There is certainly nothing moral about it.

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Sorry, one more thing:

I think it is granted because they earned those rights:

The Mazer v. Stein quote does not say they were granted because they earned those rights. In their own words, "encouragement of individual effort by personal gain is the best way to advance public welfare."

And that case itself cited two others, right before the quote you posted, which also make it clear that it is not the reason authors are granted copyrights. "The copyright law, like the patent statutes, makes reward to the owner a secondary consideration" (United States v. Paramount Pictures); it is granted "to afford greater encouragement to the production of literary [or artistic] works of lasting benefit to the world" (Washingtonian Pub. Co. v. Pearson).

No, copyright is granted to benefit the general public. If the rights do not benefit the public, then they should not be granted, no matter how much authors "earned" them:

It will be seen, therefore, that the spirit of any act which Congress is authorized to pass must be one which will promote the progress of science and the useful arts, and unless it is designed to accomplish this result and is believed, in fact, to accomplish this result, it would be beyond the power of Congress.

[...] Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people...

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No, I think he's referring to average_joe's insistence.

Well, that's not much better. I'm not a huge fan of current copyright laws, but even so, calling copyright holders "the most useless in our society" is total BS. (Even if he was only talking about corporate copyright holders.)

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Erm, I don't get what you're saying here? Are you saying that because the show was threatened by a 3rd party, you removed it from your wishlist out of protest for the threat it received? If so, you kind of have that backwards. Why not choose a form of protest that goes against the crap you hate rather than supporting it?